Another big week for Obamacare in the courts

posted at 4:01 pm on March 20, 2014 by Gabriel Malor

Next week will be a big one for Obamacare in the courts. In Sebelius v. Hobby Lobby, the Supreme Court will hear argument on whether the contraception mandate violates the religious freedom of businesses and business owners. An anti-religion outcome in the case would forever alter the relationship between the government and believers, essentially requiring that people with sincere religious beliefs give up their rights to religious practice when they operate a business.

Victory for Hobby Lobby’s religious owners is not assured. The Circuit Courts of Appeals to consider the question issued decidedly mixed decisions, with one court glibly holding that for-profit corporations simply cannot exercise religion at all and that religious owners are distinct and wholly separate from the businesses they run. But counsel for the Becket Fund, which is litigating the Hobby Lobby case, points out that “for-profit doesn’t mean no conscience.”

Many entrepreneurs embrace profit-making and charitable purposes. Companies such as shoes seller Toms and eyeglass firm Warby Parker sell products at a profit with a pledge to devote part of their earnings to the needy. The number of for-profit businesses with a built-in charitable dimension has proliferated.

Other businesses forgo profits in order to honor their convictions. Gap Inc. increased its starting wage for employees out of a sense of social responsibility. CVS Caremarksays it decided to stop selling tobacco products rather than continue to violate the company’s social mission.

This combination of conscience and enterprise is a vital part of our free-market tradition. If the 2008 financial debacle taught anything, it is that focus on profits above all can cause terrible damage. It was a profits-first mentality that encouraged lenders to deceive customers, ratings agencies to deceive banks, and banks to deceive each other.

The challenge for Hobby Lobby will be to get the Supreme Court to acknowledge the arbitrary line that the Obama administration has drawn between non-profit and for-profit companies. If Hobby Lobby’s owners had organized as a non-profit, they would be exempt from the contraception mandate. But, so far as HHS is concerned, the decision to organize as a for-profit enterprise, even though their religious belief is exactly the same as exempt non-profits, deprives Hobby Lobby and its owners of First Amendment protection. The court will hopefully reject this arbitrary line-drawing, and by a wide margin. The First Amendment does not protect certain corporate forms; it protects religious belief and practice, which here is the same for both non-profit and for-profit companies.

The capacity of judges to draw obvious distinctions will also be at play in the D.C. Circuit Court of Appeals next week. In Halbig v. Sebelius, employers are challenging the HHS and Treasury’s authority to provide tax subsidies to individuals who sign up for Obamacare on federally-run exchanges. The Obamacare law was so sloppily written (rushed Christmas Eve votes will do that) that Congress forgot to provide for such subsidies in the text of the law. Professor James Blumstein explains:

So, the IRS rode to the rescue. It wrote a regulation that, despite the provisions in the ACA itself, provided a subsidy for all income-qualified purchasers, even those on federally-run exchanges. A result is that an employer could face a substantial new tax if just one employee receives a federal subsidy, even if the employer’s state has chosen not to set up an exchange. And the states would no longer have an incentive to run an exchange since residents would receive federal subsidy on federally-run exchanges.

This seems pretty straightforward: There are two types of exchanges under the ACA, one established by states, and another established by the federal government. The statute only authorizes subsidy on state-run exchanges.

There are three of these “subsidy cases” to keep an eye on. So far the district courts to have ruled on this issue have disturbingly suggested that HHS and Treasury must have had the authority to issue the regulation because otherwise Obamacare wouldn’t work. Never you mind that the authority to simply rewrite the laws isn’t found in the Obamacare text either.

The subsidy cases aren’t quite as flashy as the contraception mandate cases. They’re about statutory interpretation, which only a lawyer could love. (And I do.) But unlike the contraception mandate cases, the subsidies cases could actually bring the entirety of Obamacare crashing down. If HHS has to let Hobby Lobby and other employers decline to provide contraception, Obamacare, with its exchanges, its taxes, its intrusion into daily life, will go on. But if HHS and Treasury are forbidden from offering health care subsidies to people in two-thirds of the states, the whole thing collapses as Obamacare’s enormous premium and deductible hikes price people out of the market. So definitely send a prayer for the religious business owners in Hobby Lobby. But send one for the Halbig plaintiffs too. If Congress won’t bestir itself to end this unpopular, destructive law, the Courts might.

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But counsel for the Becket Fund, which is litigating the Hobby Lobby case, points out that “for-profit doesn’t mean no conscience.”

But, “non-profit” always does with leftist groups – e.g. ACORN. Lefty non-profits are among the most despicable, sickening entities to ever exist. Of course, companies are merely reflections of their owners/operators.

An anti-religion outcome in the case would forever alter the relationship between the government and believers, essentially requiring that people with sincere religious beliefs give up their rights to religious practice when they operate a business.

Yep they want to force believers out of the public altogether. Maybe they can come up with a mark that must be taken to be able to participate in teh marketplace.

Never you mind that the authority to simply rewrite the laws isn’t found in the Obamacare text either.

Neither is the word “tax” for the mandate penalty.

Our courts are nothing but sick jokes. There is no law. Just … empathy, now. Well, thank G-d the Senate GOP allowed empathy to be declared a legitimate main criterion for a judge or judicial decision with the wise Latina confirmation. Otherwise, these courts might think they are bound by actual words on paper or something, and what fun would that be?

Citizens united says for profit corporations are entitled to free speech like the rest of us. How is this any different? How can the same court say corporations are free to speak but aren’t free to do so I regards to religion. The 1st Amendment applies to both political and religious freedom.

This is what’s so galling about liberal hacks like Ewrin Chermensky. He acknowledges corporations are allowed free speech via citizens united but somehow it doesn’t apply to religion even though both political speech and religious freedom are in the same damn amendment.

“Victory for Hobby Lobby’s religious owners is not assured. The Circuit Courts of Appeals to consider the question issued decidedly mixed decisions, with one court glibly holding that for-profit corporations simply cannot exercise religion at all and that religious owners are distinct and wholly separate from the businesses they run.”

–So explain how Hobby Lobby (as opposed to its owners) can legally practice religion since Hobby Lobby can’t discriminate against employees on the basis of religion. It can’t promote people who belong to a particular church on that basis; it can’t require people to go to a particular church and it can’t require people to abide by the rules of a particular religion.

Sorry. I want Hobby Lobby to lose. If Hobby Lobby wins, then the social conservatives who own for-profit companies will next argue that they have the right to only hire or promote employees who share and follow their religious views. They’ll say these laws against religious discrimination also infringe on their practice of religion.

Sorry. I want Hobby Lobby to lose. If Hobby Lobby wins, then the social conservatives who own for-profit companies will next argue that they have the right to only hire or promote employees who share and follow their religious views. They’ll say these laws against religious discrimination also infringe on their practice of religion.

jim56 on March 20, 2014 at 4:35 PM

Yea because having a central government get to determine who is religious enough is so much better. Nice straw man by the way troll.

Gabe, why do you say Congress “forgot” to write the law in such a way as to allow subsidies to participants in the Federal exchange? Wasn’t the law explicitly written so as to encourage states to build exchanges, this being one consciously constructed inducement to do so?

I was in Hobby Lobby this week. They have nice selections of Christian stuff I ovpccasionally need for hobbies in my moderately Christian life. I was wondering how long they’ll be able to sell these. They also have Jewish items. Could they be forced to carry items from all religions, if they carry them from one? If not, why not? Given the way things are going, I mean. They’re also closed on Sunday. Isn’t that wrong somehow, too?

I am wondering – can Hobby Lobby just not provide health insurance to their employees?

Gabe, why do you say Congress “forgot” to write the law in such a way as to allow subsidies to participants in the Federal exchange? Wasn’t the law explicitly written so as to encourage states to build exchanges, this being one consciously constructed inducement to do so?

MTF on March 20, 2014 at 4:45 PM

I wouldn’t even say “encourage”. The Feds wanted to force states to expand Medicare and create exchanges under the threat of withholding funds if they refused. It was in the same terrible decision by Roberts that said states can’t be forced to participate. A small silver lining in that travesty of a decision.

Sorry. I want Hobby Lobby to lose. If Hobby Lobby wins, then the social conservatives who own for-profit companies will next argue that they have the right to only hire or promote employees who share and follow their religious views. They’ll say these laws against religious discrimination also infringe on their practice of religion.

jim56 on March 20, 2014 at 4:35 PM

And the social conservatives who own for-profit companies have every right to do exactly what you described. And the atheistic libertarians, and everyone else: hire who they want, fire who they want, work for who they want, according to their own calculus, and subject to their contracts.

So Jim56 is of the opinion that a business owner does not, in fact, have any power and control over his business? That I go into business and have no power over whom I hire, fire, promote, and so forth? If I, as the business owner, cannot make staffing decisions, who will? The State? The DNC? Are we going to have to put into place an affirmative action program, Jim?

I recall something else in the 1st Amendment: freedom of association. Except, of course, you do not get to choose who you work with. Right Jim?

Jim: you cannot think of any reason why I’d prefer to hire an Amish man to work my farm over an inner-city democrat? You know, things like “Honesty” and “Responsible” and “hardworking” that the Amish are famous for? Why should I be forced to not hire the Amish person, Jim?

Jim: you cannot think of any reason why I’d prefer to hire an Amish man to work my farm over an inner-city democrat? You know, things like “Honesty” and “Responsible” and “hardworking” that the Amish are famous for? Why should I be forced to not hire the Amish person, Jim?

Vanceone on March 20, 2014 at 4:54 PM

–Because for-profit companies can’t discriminate on the basis of religion. If you’re hiring someone because they’re honest, responsible and hardworking, you’re not discriminating on the basis of religion.

And the atheistic libertarians, and everyone else: hire who they want, fire who they want, work for who they want, according to their own calculus, and subject to their contracts.

The Civil Rights Act overreached.

Axe on March 20, 2014 at 4:52 PM

.
Be fair: the Christians are allowed to cower in their cubicles and display symbols of their belief as long as they are not as ostentatious nor as obvious as the Rainbow Flag, the transgender flag, the aids awareness ribbon and the Great Big Lambda lesbian awareness Greekification. To expect those bigoted Christians to be considered for promotion is just asking for trouble…

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;…

Just curious. If we talk about original intent- was it The Framers intention to have people who open a business be subject to Congresses, or for that matter the courts whimsical “prohibition” on the free exercise of their religion?

That’s of course rhetorical. But then, this is the Roberts Court. So I am prepared for a new level of contorting, inventive decisions.

Be fair: the Christians are allowed to cower in their cubicles and display symbols of their belief as long as they are not as ostentatious nor as obvious as the Rainbow Flag, the transgender flag, the aids awareness ribbon and the Great Big Lambda lesbian awareness Greekification. To expect those bigoted Christians to be considered for promotion is just asking for trouble…

ExpressoBold on March 20, 2014 at 5:06 PM

It’s absolutely true. The government could have and should have set its own policy, the only thing it had any right to set, and not usurped people’s rights to conduct their own affairs. But blacks would have still been denied access to some businesses owned by racist whites. But the black owned businesses that grew up around them would have had the same freedom, and we would all still be free today (and I suspect a great deal of wealth would have been transferred from whites to blacks in the interim).

And the Christian owned businesses that grow up alongside The Unity’s shops of our Utopia would be free to ban the rainbow flag. :)

We’re free or we’re not. We’re not. It’s easy to intuitively understand that they very idea that I should be compelled by law to make a cake, whether I want to or not, is bondage. I know it’s wrong, and I know I’m not free. Walking backward to see where the knot got tangled is harder, and untangling it . . . it might be necessary to start with new rope if we keep going in this direction.

The funny thing is that social cons used to say, “there is no such thing as separation of church and state, that’s all made up”. Now they routinely use religion as a way of trying to stop govt. overreach. Looks like more and more people are moving in the libertarian direction, even if they don’t realize it.

The funny thing is that social cons used to say, “there is no such thing as separation of church and state, that’s all made up”. Now they routinely use religion as a way of trying to stop govt. overreach. Looks like more and more people are moving in the libertarian direction, even if they don’t realize it.

cimbri on March 20, 2014 at 7:02 PM

What do you mean?
The idea that there is no separation, is valid. Your rights as defined under the Constitution are not for the government to decide one way or the other.

We’re free or we’re not. We’re not. It’s easy to intuitively understand that they very idea that I should be compelled by law to make a cake, whether I want to or not, is bondage.

Axe on March 20, 2014 at 5:28 PM

There is no absolute freedom. A business is part of a social contract web. The taxpayers agree to offer them a business license, tax breaks, and protect their property, and in return, the business must serve the public. It’s also a way of keeping the peace. In the old days, when a merchant wouldn’t sell flour and sugar to a settler or farmer they didn’t like or approve of, they might find their business burned down the next day. Then that same merchant would be crying to the taxpayers to spend more money to protect his property. See how that works?

There is no absolute freedom. A business is part of a social contract web. The taxpayers agree to offer them a business license, tax breaks, and protect their property, and in return, the business must serve the public. It’s also a way of keeping the peace. In the old days, when a merchant wouldn’t sell flour and sugar to a settler or farmer they didn’t like or approve of, they might find their business burned down the next day. Then that same merchant would be crying to the taxpayers to spend more money to protect his property. See how that works?

cimbri on March 20, 2014 at 7:20 PM

Piffle. There is no social contract web. WTF does that even mean? Not every business has to have a business license. Not every business even gets law enforcement to protect their property. Not every business must serve all of the public. Your entire argument is asinine.

What do you mean?
The idea that there is no separation, is valid. Your rights as defined under the Constitution are not for the government to decide one way or the other.

Mimzey on March 20, 2014 at 7:09 PM

So if there is no separation between church and state, then the state can compel you to do the same thing it requires of every other non-religious entity or person. It’s the separation that is supposed to protect the religious person from the govt.

Gabe, why do you say Congress “forgot” to write the law in such a way as to allow subsidies to participants in the Federal exchange? Wasn’t the law explicitly written so as to encourage states to build exchanges, this being one consciously constructed inducement to do so?

MTF on March 20, 2014 at 4:45 PM

They wrote it so that public pressure would make states expand Medicaid and set up their own exchanges. The pain of their constituents having to pay fines/not get subsidies because they couldn’t get on a state exchange was supposed to make the states write their own.

The police have no duty to protect anyone. And there is no “separation of church and state.”

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Sorry. I want Hobby Lobby to lose. If Hobby Lobby wins, then the social conservatives who own for-profit companies will next argue that they have the right to only hire or promote employees who share and follow their religious views. They’ll say these laws against religious discrimination also infringe on their practice of religion.

jim56 on March 20, 2014 at 4:35 PM

I call B.S. on this. Big. Time. Anyone with a brain knows that one of the central tenets of the Catholic faith is that the prohibition on contraception (and abortion) are absolute moral teachings of the Church.

Show me one — one — Christian denomination that says its religious doctrine includes only hiring and promoting those with like-minded views.

We have laws on the books already dealing with such discrimination in employment and they do not infringe on anyone’s First Amendment right to free expression of religion. This mandate was specifically designed and is being implemented in such a way that it is saying religion is left at one’s front door or the exit of the church/temple/synagogue. This runs contrary to what the First Amendment was meant to do.

A while ago on Twitter, someone was at a conference of progressives, and live tweeted the event. They were pretty damn explicit in expressing a goal where religion is confined solely to the church (which they’d tax out of existence anyway) and prohibited in the public square.

There is no absolute freedom. A business is part of a social contract web. The taxpayers agree to offer them a business license, tax breaks, and protect their property, and in return, the business must serve the public. It’s also a way of keeping the peace. In the old days, when a merchant wouldn’t sell flour and sugar to a settler or farmer they didn’t like or approve of, they might find their business burned down the next day. Then that same merchant would be crying to the taxpayers to spend more money to protect his property. See how that works?

cimbri on March 20, 2014 at 7:20 PM

I’ll try to do this without fisking. If you mean freedom is not unlimited, I agree and never said otherwise. No, my bartering is not something allowed by the permission of others; exchanging my things for other people’s things is built-in, part of my humanity; it’s social behavior, like sex, but like sex, I don’t need permission from very many people to engage in it; the idea that my economic activity is a public accommodation is completely false and always has been, and fighting against that idea is the reason I’m commenting; I don’t need a “business license,” tax-breaks, or protection of my property, but thanks; and I should be able to serve anyone I’d like, which for me would rarely be “the public.”

In the old days, when a merchant wouldn’t sell flour and sugar to a settler or farmer they didn’t like or approve of, they might find their business burned down the next day. Then that same merchant would be crying to the taxpayers to spend more money to protect his property. See how that works?

I saw something like that on Big Valley — less the demand to spend more taxpayer money on protection — but there’s really nothing to do with it.

Your belief that I conduct business at the pleasure of Society and therefore must serve Society makes me a slave to Society. If Society says I must make a cake, I must make a cake. I’m a slave in a kitchen. See how that works?

Your belief that I conduct business at the pleasure of Society and therefore must serve Society makes me a slave to Society. If Society says I must make a cake, I must make a cake. I’m a slave in a kitchen. See how that works?

Axe on March 20, 2014 at 8:50 PM

Axe. you are selling a cake and getting paid for it, and despite the absurd claims of some people, a proprietor cannot be forced to make a penis or some other vulgar cake. Every business has a set type of cakes they make just like any merchant. So getting paid a fair market price for a cake is not being a slave. A slave works for nothing, and is in chains, and will be killed if he doesn’t pick the cotton.

This is another one of those cases where conservatives are being too cute by half. Yall are looking for fights where none should exist.

If the 2008 financial debacle taught anything, it is that focus on profits above all can cause terrible damage. It was a profits-first mentality that encouraged lenders to deceive customers, ratings agencies to deceive banks, and banks to deceive each other.

Authoritarians, statists and the Bernie Sanders socialists of the world will gladly let us have religious freedom in exchange for a beat-down on the value of profits. Beat up on profits enough, we will all be so broke and dispirited, religious freedom will be pointless- except for those who accept life to be pointless and take their own lives. We’ll at least have that as we lay across railroad tracks stripped of purpose, property and profits.

It was a profits-first mentality that encouraged lenders to deceive customers, ratings agencies to deceive banks, and banks to deceive each other.

Incorrect. The federal government forced banks and lenders to make bad loans (part of the government’s perversion of debt instruments in order to get low-priced loans into the hands of people who were bad risks) and then used Fannie and Freddie to buy up the bad loans from the lenders (to get them off their books so they could go out and make more bad loans, which they were forced to do) while putting the implicit stamp of a federal guarantee on the bad paper as it passed through the mortgage monsters and made its way to investors. After lenders were thus forced to become brokers for bad paper, with no risk (but subject to government intimidation and coercion if they didn’t) they finally jumped in head first, as any normal person would have expected or done.

I hate these people who, to this day, continue to lie about what caused the credit crisis.

Sorry. I want Hobby Lobby to lose. If Hobby Lobby wins, then the social conservatives who own for-profit companies will next argue that they have the right to only hire or promote employees who share and follow their religious views. They’ll say these laws against religious discrimination also infringe on their practice of religion.

jim56 on March 20, 2014 at 4:35 PM

It is not your own life if you are told who you must associate with (doing business with someone is a specifice case of associating with people). It is ugly to see someone avoid someone else because of cultural differences. It’s narrow-minded. Agreed. But, it should not be illegal. Those who choose to run their business based on shallow and prejudiced views of others will not often succeed. This is why there’s no need to fear this religious freedom case. In a free country where free enterprise reigns supreme, those who you worry about would be the exception. In a country of 300 million people, they wouldn’t matter.

I call B.S. on this. Big. Time. Anyone with a brain knows that one of the central tenets of the Catholic faith is that the prohibition on contraception (and abortion) are absolute moral teachings of the Church.

Show me one — one — Christian denomination that says its religious doctrine includes only hiring and promoting those with like-minded views.

englishqueen01 on March 20, 2014 at 8:44 PM

–I can show you several Christian denominations who practice shunning. Jehovah’s Witnesses, for a start. And the owners of Hobby Lobby aren’t Catholic, anyways.

So a man is standing there, about to throw a molotov cocktail at your business, which is built as a cabin, and according to you, the policeman is going to go ahead and let him do it. Too preposterous to even answer. Haven’t you seen their motto on the police cars, “To Protect and Serve:. case closed.

So a man is standing there, about to throw a molotov cocktail at your business, which is built as a cabin, and according to you, the policeman is going to go ahead and let him do it. Too preposterous to even answer. Haven’t you seen their motto on the police cars, “To Protect and Serve:. case closed.

Haven’t you seen their motto on the police cars, “To Protect and Serve:. case closed.

cimbri on March 20, 2014 at 11:04 PM

Protect and Serve WHO? The police are employed by a city to protect and serve the city. Most times those actions overlap with protecting and serving the citizens of that city, but not always. Only SHERIFFS, elected by the people, truly protect and serve the people.

Libs only want businesses to have a conscience when it applies to things like equal pay, increases to minimum wage and family time off. Business owners who hold strong religious beliefs would actually have more compassion for their employees and treat them accordingly, then any law or regulation from an uncaring govt.